6 F. 79 -

6 F1d 79

Case Text

FISCHER V. HAYES.

79

improvement patented for any purpose. The improvement is stated in the specification to be an invention relating to "a new machine for pressing mouldings for cornices, etc., from galvanized or other sheet metal." What is meant by "mouldings" is shown by the red lines in figures 2 and 3 of drawings. They are structures resulting from round or angular bends in sheet metal. The allegation of the bill is sufficient. (4) As to the use by the defendant, the evidence of MacClay shows that since the patent was granted the defendant has used at his places of business in the city of New York, for making sky-light bars, a machine embodying the inventions covered by claims 2 and 4 of the patent, with the female die above, and reciprocating up and down, and the male die below, not re-reciprocating, and resting on an upright standard, which was bent over at the top so as to allow metal which had been partly bent to swing down under the male die, while further bends were being made, and not have the prior bends crushed out. The male die was so arranged that no dirt could collect around it, or between it and the female die. The defendant had this machine made for himself. In the Fischer machine and in the defendant's machine only two dies are in place at a time, one upper one and one lower one. Abbott says that he saw the defendant's machine used in his factory to bend sheet metal into a sky-light bar. The evidence is sufficient to show the use of the machine in infringement of claims 2 and 4, in bending square angles in sheet metal. This is enough. Moreover, the answer admits that the defendant has a machine, and uses or operates it. A drawing of it is given by the witness MacClay. It was easy for the defendaut to show, if the fact were so, that this drawing was not correct, or that the machine had not been used by him in the shape shown, to make the bends testified to in sheet-metal sky-light bars. (5) The bill alleges that the defendant's use of the machine has been without the plaintiff's consent. This allegation is not specifically denied in the answer, nor does the answer

80

FEDERAL REPORTER.

allege any license or consent. It is objected that the plaintiff has not proved want of consent. This was not necessary. It was for the defendant to prove consent, if anything needen to be proved on the subject. (6) The apparatuses testified to by Philip Barkel, Axel Schiermacher, and John R. Hopkins have no bearing on the plaintiff's patent. They are not alluded to in the brief for the defendant. They show no organized machine with a concave upright standard, on the top of which a male die is placed, and they show no male or female die, and the defendant's expert, Mr. Renwick, gives no testimony in regard to them. . (7) The machine testified to by Ristine and Brand was a corrugating machine, and was incapable of making tbe structure shown in the drawings of the plaintiff's patent. It is not shown ever to have been used in bending a square angle in sheet metal. It is not shown to have been ever used with only two dies at a time,-one above and one below,-with the lower die arranged as in the plaintiff's machine. The testimony given by Renwick and Ristine as to the machine, and the model of it, was properly objected to on the ground that the use of the machine was not set up in the answer. (8) As to the Peltier patent, Mr. Renwick admits that a change would have to be made in the apparatus shown by figure 10, in order to do the work shown in the drawings of the plaintiff's patent. It is plain that this change is material. It is also clear that figure 8 does not show an appara. tus anticipating claim 4 of the plaintiff's patent, and that figure 10 does not show an apparatus anticipating either claim 2 or claim 4 of that patent. (9) The Byrne book, pages 186 and 187, does not show the plaintiff's invention as to either claim. (10) The only defence on the question of novelty, pressed with any force, is the alleged prior use, in such a way as to anticipate the plaintiff's patent, of a machine made under the patent to W. E. Worthen and H. B. Renwick, before referred to. That was granted July 5,1859, for an "improvG-

FISCHER V. HAYES.

81

ment in corrugating sheet metal." The specification of the patent describes the then existing mode of corrugating sheets of metal by means of properly-sllaped male and female dies extending over the sheet, and between which the sheet is placed. The dies are then made to approach each other. The creeping of the metal to supply sufficient surface to conform to the curves and angles of the tllould is resisted by the friction of the bent metal sliding over the faces of the dies, and by the force required to bend the metal from the shape it has already taken into the shape of the next succeeding corrugation. The power required is enormous, and the metal ceases to creep and stretches, and is injured, weakened, or torn apart. The new device was to con'ugate by properlyshaped dies acting in succession on different parts of the sheet. The method is described thus in the specification: There is a lower or female die, whose cross-section is the form desired in the finished sheet metal, and it does not differ from those then in use. A set of upper dies is then procured, whose acting surfaces, when properly arranged, will constitute a single snrface, c.onforming in shape to one side of the finished sheet. They a.re arranged so as to be free to move towards and away from the under die and be properly guided. In using the machine the sheet is laid loosely on the lower or bed side, and then one of the upper dies is forced down on it until the metal tak8s the proper shape. That die is then left down, and the next die in succession in the series is brought down and left down, and so in succession until the operation is finished. The metal can thus creep and conform to shape. It is apparent thlLt this arrangement, as described, does not contain the plaintiff's invention, although the specification speaks of using the apparatus for corrugating mould- . ings for the cornices of large buildings. The claim of the patent is this: "The method of corrugating or moulding sheet metal by several dies acting in succession, substantially in the manner specified, upon a sheet resting upon a bed, die, or dies, so as to cause the metal to conform to shape, substantially in the manner herein described." The patentv.6,no.1-6 .